Larissa Waters (Queensland, Australian Greens) Share this | Hansard source

by leave—I move amendments (1) to (5) on sheet 1712 together:

(1) Schedule 1, item 2, page 3 (lines 11 and 12), omit "subjecting persons to workplace environments that are hostile on the grounds of sex", substitute "substantially contributing to the creation or maintenance of workplace environments that are hostile on the grounds of a protected attribute".

(2) Schedule 1, item 3, page 3 (before line 15), before the definition of workplace, insert:

protected attribute means a person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, potential pregnancy, breastfeeding or family responsibilities.

(3) Schedule 1, items 4 to 6, page 3 (line 17) to page 5 (line 4), omit the items, substitute:

4 After section 8

Insert:

8A Workplace environment that is hostile for 2 or more reasons

For the purposes of this Act, a workplace environment may be offensive, intimidating or humiliating to persons who have a protected attribute by reason of:

(a) the persons having the protected attribute; or

(b) a characteristic that appertains generally to persons who have the protected attribute; or

(c) a characteristic that is generally imputed to persons who have the protected attribute;

if it is offensive, intimidating or humiliating by reason of 2 or more matters that include the protected attribute or the characteristic, whether or not the protected attribute or the characteristic is the dominant or substantial reason.

5 At the end of Division 3 of Part II

Add:

28M Hostile workplace environments

(1) It is unlawful for a person to substantially contribute to the creation or maintenance of a workplace environment that is hostile on the grounds of a protected attribute.

(2) A person substantially contributes to the creation or maintenance of a workplace environment that is hostile on the grounds of a protected attribute if:

(a) the person engages in conduct in a workplace where the person works; and

(b) a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to persons who have the protected attribute by reason of:

(i) the persons having the protected attribute; or

(ii) a characteristic that appertains generally to persons who have the protected attribute; or

(iii) a characteristic that is generally imputed to persons who have the protected attribute.

Note: See also section 8A in relation to workplace environments that are offensive, intimidating or humiliating for 2 or more reasons.

(3) For the purposes of subsection (2), the circumstances to be taken into account include, but are not limited to, the following:

(a) the seriousness of the conduct;

(b) whether the conduct was continuous or repetitive;

(c) the role, influence or authority of the person engaging in the conduct;

(d) any relevant workplace policies or guidelines in effect in the workplace;

(e) any other relevant circumstance.

Note: In relation to paragraph (b), depending on the circumstances, a person may substantially contribute to the creation or maintenance of a workplace environment that is hostile on the grounds of a protected attribute even if the person's conduct is not continued or repeated.

(4) In this section:

conduct includes:

(a) making a statement, whether the statement is made orally or in writing; and

(b) an omission.

6 At the end of paragraphs 48( 1)( gaaa), (gaa) and (gc)

Add:

; or (iii) substantially contributing to the creation or maintenance of a workplace environment that is hostile on the grounds of a protected attribute;

(4) Schedule 2, item 8, page 9 (after line 8), after paragraph 47C(6)(c), insert:

(ca) whether the duty holder has conducted meaningful consultation with:

(i) if the duty holder is an employer—the duty holder's employees; or

(ii) if the duty holder is a person conducting a business or undertaking—workers in the business or undertaking;

for the purposes of ensuring that the duty holder effectively addresses key risks and behaviours relating to conduct covered by subsection (2) or (4);

(cb) whether the duty holder has complied with any guidelines prepared and published by the Commission under section 35A of the Australian Human Rights Commission Act 1986;

(5) Schedule 2, item 23, page 14 (after line 30), at the end of section 35F, add:

(4) The President may publish a notice given to a person under subsection (1) on the Commission's website after:

(a) unless paragraph (b) applies—the end of the period of 21 days after the day the notice is given to the person; or

(b) if the person requests the President to reconsider the notice under section 35G—the time the President gives written notice of a decision under subsection 35G(6).

I will briefly outline the nature of these amendments. Amendments (1) to (3) pertain to amending the hostile workplace environment provisions. As drafted, the bill's hostile workplace environment provisions apply primarily to interactions between individuals. One person must directly subject another person to the hostile environment. But requiring this nexus fails to clearly target those who create or perpetuate a hostile work environment, as opposed to those whose behaviour is encouraged by that environment. Individuals who discriminate or harass will already be captured by other sections—28A and 28AA—so, unless it's made clear that section 28M goes beyond individuals to those creating the environment in which misconduct is fostered, 28M will not achieve its aims. We think this is an amendment that gives effect to the genuine intent of the Jenkins recommendation. It's clear that strong and clear hostile work environment provisions would assist the bill to achieve its key aim. So we particularly commend amendments (1) to (3). I understand that we will not be receiving support for those amendments, which is precisely why we need a review of this bill. So I'm pleased that the previous amendments did pass. I flag that we'll be progressing clarity-style amendments along these lines when that review is underway.

I will briefly outline what amendment (4) does. The steps needed to create a safe workplace will differ between workplaces and industries. In our view, staff are best placed to identify the key risks in their workplace and how to address them. For this reason, staff should be consulted as part of the positive duty obligations, to ensure that what an employer is doing is targeted and is effective. If employers are serious about making workplaces safer, they do actually need to talk to their staff about particular risks in their workplace and what should be done to address them. Many employers will do that. Sadly, others will not. Employers need to report on the actions that they take, and they need to regularly review whether those actions are actually working. Anything else is just lip-service. That's why we've drafted our amendments to that effect, to require employers to talk with their staff and regularly report on if the positive duty is properly being implemented. The bill requires the Human Rights Commission to publish guidelines on how to comply with the positive duty, so our amendment also gives those guidelines some teeth by requiring the employer and the commission itself have regard to those guidelines in determining whether an employer has met that duty.

The Human Rights Commission requested the change in amendment (5) in the inquiry on the bill. The Human Rights Commission can issue compliance notices to employers that they believe are not meeting their positive duty obligations. The employer can then do nothing, they can dispute the notice or they can respond to the notice and enter into an enforceable undertaking setting out what changes they will make. The AHRC can currently publish those enforceable undertakings. But they are not permitted under this bill to publish those compliance notices, and it's our view that allowing the commission the discretion to publish compliance notices would improve the transparency for employees and the guidance for other employers. It's important that employers know that these changes have teeth and that people are watching, and if the commission serves a compliance notice, it is in the public interest, in my view, for people to know about that. That's why we think the commission should be given the discretion to publish those compliance notices, not just the subsequent enforcement notices when the compliance notices have been ignored. So we commend those amendments to the chamber.